Offered the mandatory state jail probation for a drug case as legislated. Doper requested �12.44(a) jail time and I obliged. Judge thinks he MUST give probation and this plea is void. The statute is of no help, can't find any case law, and the legislative intent appears to be aimed solely at reducing the inmate population of the state jails. Thoughts? Maybe the general defendant can waive anything clause or better yet, probation would be cruel and unusual punishment.

Well, the Judge ultimately has a say. You could always plea it to the lesser included of Attempted possession, with jail time?

"On conviction of a state jail felony . . ., that is punished under Section 12.35(a), Penal Code, the judge shall suspend the imposition of the sentence and place the defendant on community supervision, . . ." Since you are punishing the offense under 12.44, the quoted provision of 42.12 clearly does not apply.

I like and agree with the interpretation of 12.44a as taking the punishment outside of the mandatory language. I have another case where we offered the mandatory probation and the guy actually wanted to sit in state jail for 6 months, which I was also happy to accomodate. Am I stuck on that one, or can you find me another loophole? The presiding judge is also looking that one over (the associate judge heard the plea and the presiding judge has yet to ratify it).

Couldn't you put the (willing) defendant on a state jail probation of 180 days probated for the minimum two years (for example), with 180 days in the local state jail facility as a condition of that probation, then revoke him when he gets out and says he doesn't want to be on probation, giving him time served for his 180 days he's already done? Or agree up front to terminate him early after he's done 1/3rd of that 2 years (8 months)?

Just some thoughts ....